BANDA v. ROSEHAUGH TEA AND RUBBER CO., LTD

091-NLR-NLR-V-22-BANDA-v.-ROSEHAUGH-TEA-AND-RUBBER-CO.,-LTD.pdf

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fPrivy Council.]
Present: Lord Buokmaster, Lord Dunedin* and Lord Shaw.BANDA v. ROSEHAUGH TEA AND RUBBER CO., LTD.
Lease of lands belonging to Buddhist temple for thirty years—BuddhistTemporalities Ordinance, 1905, s. 38.
The object of the Buddhist Temporalities Ordinance, 1905, is toprevent unduly prolonged alienation of the properties devoted toreligious use, and a long lease, unless the Court is satisfied thatthere were good reasons for its being granted, would be scrutinizedvery closely by the Court before whon^it was challenged.
T
HE faots are set out in the judgment of the Supreme Court(see 20 N* L. B. 51).
January 20,1921. Delivered by Lord BuckmasterIn this case their Lordships have heard all that, can be urged bythe appellants against the judgment of the Supreme Court of Ceylon,and in their Lordships’ opinion the judgment should stand. Thereal question for consideration is whether a lease that was grantedon November 18, 1886, to the predecessors in title of the appellantsis a lease which ought to be set aside under section 38 of theBuddhist Temporalities Ordinance, 1905. That section providesthat: “ Whenever it is proved to the satisfaction of a competentCourt that any property of any temple has heretofore been leased (a) ,for a longer term of years than is consistent with the interests ofsuch temple, or (b) on terms showing an improvident alienation,”or for other reasons into which.it is not necessary to inquire, theCourt “ shall set aside such lease and restore possession of theproperty to the trustees entitled to hold the same.” It is furtherprovided that in such a case the Court shall also award, where therehas been no . collusion, a reasonable compensation for permanentimprovements effected to the property. In their Lordships’opinion it is plain that the object of this Ordinance was to preventunduly prolonged alienation of the properties devoted to religioususe,* and that a long lease, unless the Court should be satisfied thatJfcere were good reasons for its being granted, would be scrutinized’very closely by the Court before whom it was challenged.
In the present case the lease was a lease for thirty years of jungleproperty at a rent which it is admitted was the fair rent for theproperty as it then stood. It further provided that at the lapseof the thirty years the lessee should have power to claim an exten-■ sion for a further period of thirty years at the seme rent. The leasenowhere contains any provision at all that would throw upon the
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Banda.v.RosehaughTea andRubber Oo.tLtd.
lessees the duty of maintaining any state of cultivation into whichthey reduced the jungle or bound them to hand back to the lessors,when the lease ultimately ended, the property in any respect im-proved, and indeed it was expressly provided that “ the said lessoror his aforewritten shall not be entitled to have or receive of or fromthe said lessee or his aforewritten any compensation or allowancefor the non-cultivation or non-improvement of the said premiseshereby demised or for any other act whatsoever on the partof the said lessee.” It is quite true, as was urged by Mr. BarringtonWard, that there might be commercial reasons which would inducethe lessees to prevent the property becoming derelict, but it isimpossible to rely with confidence on the existence of such reasonsat a lapse of time so long as sixty years when it might be either thatthe plantation would have been worked out, or that the purposesfor which it was going to #e cultivated would no longer exist. Theresult, therefore, is that this property has been alienated for sixtyyears at a rent which was fixed at the low rent of waste land at thetime when the lease was granted, and both the learned Judge whotried the case, and at least one of the learned Judges in the SupremeCourt, have held as a question of fact that in those circumstancesthis was an improvident lease. With that conclusion of fact theirLordships are in complete agreement, and’ it only remains to saythat the real point upon which the appellants based their appealhere was the question as to whether the Judges were entitled toconsider the circumstances as they existed at the time when the’action was brought as the real circumstances determining what therent ought to have been at the time when the lease was granted.Both the learned Judges in the Supreme Court appear to havetaken as an alternative view the view that they were so entitledto regard the position. Their Lordships are not satisfied that thatview is correct, but as it is unnecessary that it should be decided atthe present moment, they content themselves with saying that thequestion of fact as to the improvident character of this lease as shownupon the face of it at the time at which it was executed is sufficientlyestablished, and that upon the matter as placed before them in theexercise of their own independent judgment they would agree withthe conclusion at which the learned Judges in the Supreme Courthave arrived.
For these reasons their Lordships will humbly advise His Majestythat this appeal should be dismissed, with costs.